Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Expands Expression
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The United Nations Human Rights Committee (HRC) found that the Republic of Korea had failed to justify the necessity of restricting an individual’s freedom of expression and had therefore violated Article 19 of the International Covenant on Civil and Political Rights. Keun-Tae Kim, a founding member of a political organization that criticized the South Korean government, was arrested for producing and disseminating pamphlets that the government saw as being supportive of the North Korean regime. The HRC found that the Republic of Korea was unable to provide a reason as to how the author’s actions posed a threat to their national security and therefore found their actions incompatible with the covenant which resulted in a breach of the author’s freedom of expression.
Keun-Tae Kim was a founding member and chair of the National Coalition for Democratic Movement, a political organization. On January 21, 1998, during an inaugural meeting of the NCDM, documents prepared by Kim that were critical of the government and its allies were circulated and read out to around 4,000 attendees. These documents not only criticized the government, but also called for national re-unification.
On August 24, 1990, the Criminal District Court of Seoul found Kim guilty of violating Article 7 of the National Security Law, the Law on Assembly and Demonstrations and the Law on Repression of Violent Activities.
Article 7 of the National Security Law, which is related to Kim’s complaint to the UN Human Rights Committee, states that “any person who assists an anti-State organization by praising or encouraging the activities of this organization, shall be punished” and “any person who produces or distributes documents, drawings or any other material(s) to the benefit of an anti-State organization, shall be punished.” [para. 2.3]
Kim appealed arguing that Article 7 of the National Security Law was overly broad and ambiguous, and violated the principle of legality enshrined in Article 21 of South Korea’s Constitution. The principle of legality provides that freedoms and rights could be restricted by law only when absolutely necessary to achieve a legitimate aim. He also argued that his pamphlets did not contain any information which endangered the survival or security of South Korea or its democracy.
The Appellate Court dismissed the Kim’s argument on the grounds that his writings advocated North Korean policy and showed Kim’s support for an anti-State organization.
In April 1991, South Korea’s Supreme Court, dismissed a further appeal, stating that the national security law provisions did not violate the Constitution as long as they were used to prevent an activity that threatened the country’s survival or endangered liberal democracy. The Court assessed that it was not necessary for Kim to have acknowledged his intent to benefit North Korea. Kim was of normal intelligence and common sense and thus should have understood that by reading his pamphlet, he supported North Korea.
Kim filed a complaint with the UN Human Right Committee alleging that the first instance judge had been mistaken and that his message was a peaceful one of “reunification through independence and democratization” and he had not commended the North Korean regime. Subsequently, he argued that there was no proof that he was a threat to national security and therefore limiting his right to freedom of expression was unjust, in violation of Article 19 of the International Covenant for Civil and Political Rights.
Kim also argued that Article 7 of the National Security Law was too vague and therefore challenged the principle of legality.
Kim further argued that since it was not his intention to praise North Korea by distributing the incriminated material and, from his perspective, its content did not involve information likely to compromise the survival or security of South Korea, that he therefore should not be punished.
The Republic of Korea argued that the author’s communication was inadmissible ratione temporis (reason of time) given that the case was based on facts that happened before “the entry into force of the Covenant and the Optional Protocol for the Republic of Korea.” [para. 6.2] The government also argued that the purpose of Article 7 of the National Security Law was to control anti-State activities which endangered the country’s national security. Further, the government claimed that there was enough evidence proving that Kim engaged in anti-state activities for North Korea’s benefit.
The decision facing the Human Rights Committee was whether South Korea’s restriction on Kim’s freedom of expression fell within the scope of Article 19. The Committee explained that under Article 19, any restriction must be provided by law, address a legitimate aim, and must be necessary to achieve a legitimate purpose.
The first of these conditions was indeed satisfied, as the restriction had been prescribed by the National Security Law. However, the State Party failed to explain the necessity of its actions with regards to how Kim threatened national security. The Committee emphasized the need for careful scrutiny as the law was broad and unspecific.
The Committee noted that Kim was sentenced for distributing pamphlets that allegedly mirrored North Korean policies. However, North Korean policies were well known in the Republic of Korea and it was unclear how Kim’s pamphlet, which simply echoed known North Korean policies, may have benefited North Korea. It was also unclear the extent of the risk that Kim’s pamphlets posed. The Committee criticized Korean courts for failing to consider these questions, or if Kim’s pamphlets had some additional effect on their readers. These questions had to be answered to establish the necessity of restricting Kim’s speech.
Accordingly, the Committee concluded that the Republic of Korea failed to specify the precise nature of the threat allegedly posed by Kim’s freedom of expression, and why his prosecution was necessary for national security. Therefore, the restriction on Kim’s freedom of expression was incompatible with Article 19 of the ICCPR.
Individual opinion by Member Nisuke Ando
Nisuke Ando did not agree with the Committee’s finding. He noted that Kim was arrested and prosecuted for reading out printed material that instigated violent public demonstrations during which Molotov cocktails and rocks had been thrown at police stations and other government offices. These actions undermined public order. Kim argued that his actions under the Law on Demonstrations and Assembly and the Law on Punishment of Violent Activities were not the subject of this communication. Nevertheless, Ando suggested that he may have been prosecuted under the National Security Law for violating public order.
Ando conceded that the National Security Law was too broad and open to abuse, but noted that North Korea invaded South Korea, and the countries remained aggressive towards each other.
In conclusion, Ando stated that the Committee had no information to prove that Kim’s actions that led to violent demonstrations did not qualify as a breach of public order, and under Article 19 of the ICCPR freedom of expression could be legitimately restricted for the protection of public order.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom expression as the Human Rights Committee reiterates that national security cannot be used as a ‘catch-all provision’ to justify restriction on speech. The authorities must be able to clearly and precisely demonstrate how an individual’s expression is threatening national security in order to constitute a legitimate limit on freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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